heflin v. united states, 358 u.s. 415 (1959)

8/17/2019 Heflin v. United States, 358 U.S. 415 (1959)

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358 U.S. 415

79 S.Ct. 451

3 L.Ed.2d 407

Lurton Lewis HEFLIN, Jr., Petitioner,

v.UNITED STATES of America.

No. 137.

Argued Jan. 14, 1959.

Decided Feb. 24, 1959.

Mr. Jerome A. Cooper, Birmingham, Ala., for petitioner.

Mr. Theodore G. Gilinsky, Sioux City, Iowa, for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

1 Petitioner and two others were indicted and convicted under three countscharging violations of the Federal Bank Robbery Act, 18 U.S.C. § 2113, 18

U.S.C.A. § 2113. One count charged taking the property by force and violence,

and assaulting and jeopardizing the lives of several persons in the course of the

taking, in violation of § 2113(d).1 Another count charged that they did 'receive,

possess, conceal, store, and dispose' of the stolen money in violation of §

2113(c).2 A third count charged a conspiracy. The sentence imposed3 was 10

years on the first count mentioned above, 3 years on the conspiracy count to

begin to run on expiration of the first, and 1 year and 1 day on the countcharging receipt of the stolen property, this sentence to begin to run on

expiration of the sentence on the conspiracy count.

2 All these events took place before our decision in Prince v. United States, 352

U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. Shortly thereafter petitioner instituted

this proceeding under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255,4 complaining that

he could not be lawfully convicted under both subsections (c) and (d) of § 2113,

i.e., of feloniously receiving and feloniously taking the same property. TheDistrict Court denied the motion. The Court of Appeals affirmed. 251 F.2d 69.

We granted certiorari (357 U.S. 935, 78 S.Ct. 1388, 2 L.Ed.2d 1550) because of

an apparent conflict between that decision and the Prince case.


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3 I. There is a preliminary question of jurisdiction. Petitioner is now in custody

under the 10-year sentence which admittedly is valid. Since he has not

completed that sentence nor the consecutive conspiracy sentence, it is argued

that relief by way of § 2255 may not be had.

4 We reviewed in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed.

232, the history of § 2255 and emphasized that its purpose was to minimizesome of the difficulties involved in the use of habeas corpus. It is now argued

that when consecutive sentences are imposed, § 2255, no more than habeas

corpus (McNally v. Hill, 293 U.S. 131, 138, 55 S.Ct. 24, 27, 79 L.Ed. 238), can

be used to question a sentence which the prisoner has not begun to serve. The

Court is divided on that issue. Some think that when § 2255 says 'A motion for

such relief may be made at any time.' it means what it says. To them the

correction of sentence, if made, will affect 'the right to be released,' protected by

§ 2255, even though that right will not be immediately realized. A majority,however, are of the view, shared by several Courts of Appeals,5 that § 2255 is

available only to attack a sentence under which a prisoner is in custody. Yet in

their view relief under Rule 35 of the Federal Rules of Criminal Procedure, 18

U.S.C.A.6 is available (at least where matters dehors the record are not

involved), the only question here being whether the sentence imposed was

illegal on its face.7

5 II. We held in Prince v. United States, supra, that the crime of entry into a bank with intent to rob was not intended by Congress to be a separate offense from

the consummated robbery. We ruled that entering with intent to steal, which is

'the heart of the crime,' id., 352 U.S. at page 328, 77 S.Ct. at page 407, 'merges

into the completed crime if the robbery is consummated.' Ibid. We gave the Act

that construction because we resolve an ambiguity in favor of lenity when

required to determine the intent of Congress in punishing multiple aspects of

the same criminal act.

6 Subsection (c) of § 2113, with which we are now primarily concerned, came

into the law in 1940. The legislative history is meagre. The Senate Report

(S.Rep.No.1801, 76th Cong., 3d Sess.) is captioned 'Punishment for Receivers

of Loot From Bank Robbers.' The Report states, 'This bill would add another

subsection to further make it a crime, with less severe penalties (maximum

$5,000 fine and 10 years imprisonment, or both) to willfully become a receiver

or possessor of property taken in violation of the statute,' p. 1. Similarly the

House Report states 'Present law does not make it a separate substantiveoffense knowingly to receive or possess property stolen from a bank in violation

of the Federal Bank Robbery Act, and this bill is designed to cover the

omission.' H.R.Rep.No.1668, 76th Cong., 3d Sess., p. 1.


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7 This clue to the purpose of Congress argues strongly against the position of the

Government. From these Reports it seems clear that subsection (c) was not

designed to increase the punishment for him who robs a bank but only to

provide punishment for those who receive the loot from the robber. We find no

purpose of Congress to pyramid penalties for lesser offenses following the

robbery. It may be true that in logic those who divide up the loot following a

robbery receive form robbers and thus multiply the offense. But in view of thelegislative hstory of subsection (c) we think Congress was trying to reach a

new group of wrongdoers, not to multiply the offense of the bank robbers

themselves.

8 Reversed.

9 Mr. Justice STEWART, whom Mr. Justice FRANKFURTER, Mr. Justice

CLARK, Mr. Justice HARLAN, and Mr. Justice WHITTAKER join,concurring.

10 While joining the Court's opinion, I think it clear that a motion for relief under

28 U.S.C. § 2255, 28 U.S.C.A. § 2255 is available only to attack a sentence

under which a prisoner is in custody. That is what the statute says. That is what

the legislative history shows. That is what federal courts, faced almost daily

with the statute's application, have unanimously concluded. Personal notions as

to the kind of a post-conviction statute that Congress might have enacted or

should enact are, of course, entirely irrelevant to the inquiry.

11 First. The words which Congress has used are not ambiguous. Section 2255

provides that: 'A prisoner in custody under sentence * * * claiming the right to

be released * * * may move the court which imposed the sentence to vacate, set

aside or correct the sentence.' The statute further provides: 'A motion for such

relief may be mad at any time.' This latter provision simply means that, as in

habeas corpus, there is no statute of limitations, no res judicata, and that the

doctrine of laches is inapplicable.

12 Second. The legislative history of § 2255 is reviewed at length in the opinion

which Mr. Chief Justice Vinson wrote for the Court in United States v.

Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. No chronicle of the genesis

and purpose of a legislative enactment could be more authentic, because almost

the entire legislative history is to be found in the deliberations andrecommendations of the Judicial Conference of the United States, over which

Mr. Chief Justice Vinson then presided. The opinion in Hayman clearly shows

that, 'the sole purpose' of the statute 'was to minimize the difficulties


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encountered in habeas corpus hearings by affording the same rights in another

and more convenient forum.' 342 U.S. at page 219, 72 S.Ct. at page 272. Those

difficulties are detailed in the opinion. There is not one word to indicate any

intent to alter the basic principle of habeas corpus that relief is available only to

one entitled to be released from custody.

13 The very office of the Great Writ, its only function, is to inquire into thelegality of the detention of one in custody. It is unnecessary to paraphrase here

Mr. Justice Stone's penetrating discussion in McNally v. Hill, 293 U.S. 131, 55

S.Ct. 24, 79 L.Ed. 238, or to incorporate the thorough review of legal history

there contained. It will suffice to note only the Court's conclusion: 'Without

restraint of liberty, the writ will not issue. * * * Equally, without restraint which

is unlawful, the writ may not be used. A sentence which the prisoner has not

begun to serve cannot be the cause of restraint which the statute makes the

subject of inquiry.' (Citations omitted.) 293 U.S. at page 138, 55 S.Ct. at page27.

14 Third. It is something of an understatement simply to say that these views are

'shared by several Courts of Appeals.' So far as I have been able to find, these

courts, at least since the Hayman decision, have been unanimous in holding that

a motion under § 2255 may be filed only by a prisoner claiming the right to be

released. These are the courts continually faced with problems arising under §

2255, and many of them have given careful consideration to this very issue.United States v. Bradford, 2 Cir., 194 F.2d 197; United States v. McGann, 2

Cir., 245 F.2d 670; United States ex rel. Bogish v. Tees, 3 Cir., 211 F.2d 69, 71;

Fooshee v. United States, 5 Cir., 203 F.2d 247; Duggins v. United States, 6 Cir.,

240 F.2d 479; Juelich v. United States, 6 Cir., 257 F.2d 424; Oughton v. United

States, 9 Cir., 215 F.2d 578; Williams v. United States, 9 Cir., 236 F.2d 894;

Hoffman v. United States, 9 Cir., 244 F.2d 378; Toliver v. United States, 9 Cir.,

249 F.2d 804; Miller v. United States, 9 Cir., 256 F.2d 501; Smith v. United

States, 9 Cir., 259 F.2d 125.

15 Although believing that relief in this case was not available under § 2255, I

think, and indeed the Government concedes, that relief was available to the

petitioner by virtue of Rule 35 of the Fed.Rules Crim.Proc. That rule provides:

'The court may correct an illegal sentence at any time.' The rule became

effective more than two years before the enactment of § 2255 and has an

entirely different history. It was a codification of existing law and was intended

to remove any doubt created by the decision in United States v. Mayer, 235U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129, as to the jurisdiction of a District

Court to correct an illegal sentence after the expiration of the term at which it

was entered.*


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This subsection provides:

'Whoever, in committing, or in attempting to commit, any offense defined in

subsections (a) and (b) of this section, assaults any person, or puts in jeopardy

the life of any person by the use of a dangerous weapon or device, shall be

fined not more than $10,000 or imprisoned not more than twenty-five years, or

both.'

This subsection states:

'Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any

property or money or other thing of value knowing the same to have been taken

from a bank, or a savings and loan association, in violation of subsection (b) of

this section shall be subject to the punishment provided by said subsection (b)

for the taker.'

This was a corrected sentence imposed after the appeal, as reported in Heflin v.

United States, 5 Cir., 223 F.2d 371.

Section 2255 reads in relevant part as follows:

'A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United States, or that the courtwas without jurisdiction to impose such sentence, or that the sentence was in

excess of the maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate, set aside or

correct the sentence.

'A motion for such relief may be made at any time.

'Unless the motion and the files and records of the case conclusively show thatthe prisoner is entitled to no relief, the court shall cause notice thereof to be

served upon the United States attorney, grant a prompt hearing thereon,

determine the issues and make findings of fact and conclusions of law with

16 Whether Rule 35 covers the broader field of collateral attack where a hearing to

consider matters dehors the record is necessary, we need not here determine.

The Rule certainly covers a case like the present one where the claim is that the

sentence imposed was illegal on its face. For this reason, and because I agree

with the Court's construction of the Federal Bank Robbery Act, I concur in the

opinion and the judgment.

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respect thereto. If the court finds that the judgment was rendered without

jurisdiction, or that the sentence imposed was not authorized by law or

otherwise open to collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack, the court shall vacate and set the

judgment aside and shall discharge the prisoner or resentence him or grant a

new trial or correct the sentence as may appear appropriate.

'A court may entertain and determine such motion without requiring the

production of the prisoner at the hearing. * * *' 62 Stat. 967, amended 63 Stat.

105.

United States v. Bradford, 2 Cir., 194 F.2d 197; United States v. McGann, 2

Cir., 245 F.2d 670; United States ex rel. Bogish v. Tees, 3 Cir., 211 F.2d 69, 71;

Fooshee v. United States, 5 Cir., 203 F.2d 247; Duggins v. United States, 6 Cir.,

240 F.2d 479; Crow v. United States, 9 Cir., 186 F.2d 704; Oughton v. United

States, 9 Cir., 215 F.2d 578; Hoffman v. United States, 9 Cir., 244 F.2d 378;

Miller v. United States, 9 Cir., 256 F.2d 501.

Rule 35 provides in part:

'The court may correct an illegal sentence at any time.'

Since the motion under Rule 35 is made in the original case, the time withinwhich review by certiorari of the Court of Appeals decision should be sought is

30 days. Supreme Court Rule 22(2), 28 U.S.C.A. The petition for writ of

certiorari in this case was not filed until after the passage of 30 days from the

judgment below. Nevertheless, because successive motions may be made under

Rule 35 and because no jurisdictional statute is involved, the majority agrees to

dispense with the requirements of our Rule in order to avoid wasteful circuity.

To those of us who deem that § 2255 is available, there is no question but that

the petition was in time. It was filed within the 90-day period provided by 28U.S.C. § 2101(c), 28 U.S.C.A. § 2101(c) governing this type of suit. For a

motion under § 2255, like a petition for a writ of habeas corpus (Riddle v.

Dyche, 262 U.S. 333, 336, 43 S.Ct. 555, 556, 67 L.Ed. 1009), is not a

proceeding in the original criminal prosecution but an independent civil suit.

See Judge Shackelford Miller's discussion of the relationship between § 2255

and Rule 35 in Duggins v. United States, 6 Cir., 240 F.2d 479.

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heflin v. united states, 358 u.s. 415 (1959)

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